The Congressional Review Act Is No Solution
This post was originally published on The Regulatory Review.
Over the last several years, conservative opponents of regulatory safeguards for health, safety, the environment, consumers, and the economy have gradually coalesced around a grand theory for why the supposed balance of policymaking powers between the executive and legislative branches has become so, well, unbalanced. These opponents’ theory goes something like this: Congress faces strong incentives to delegate too much substantive policymaking authority to federal agencies because delegation creates a political “win-win.”
By passing statutes with broad aspirational goals, members of Congress avoid the politically fraught task of actually specifying the changes required to achieve their goals. Nonetheless, legislators still get credit from voters for taking this highly visible, if not particularly bold, action. That is Win Number 1.
Later, it is not Congress, but the federal agencies that end up bearing the brunt of outrage when they begin to translate the legislation into constraints on private behavior through the highly visible act of issuing regulations. Better still, Congress gets to swoop in and publicly wag its disapproving finger at agencies for allegedly impacting the lives of their constituents in negative ways. That is Win Number 2.
It is a neat …
The President’s decision to withdraw the United States from the Paris Agreement is a tragedy born of his failure to appreciate the vital importance of U.S. leadership in the world. It’s particularly regrettable coming as it does on the heels of his performance in Europe last week, during which his refusal to embrace the fundamental underpinnings of NATO rocked the alliance.
By abandoning the Paris Agreement, Trump continues on a reckless path of pretending that the dire threat posed by climate change is no more lasting than a tweet. It’s one thing to campaign on a know-nothing platform on climate change that denies scientific reality, and another altogether to govern that way. If ever there was a moment for Donald Trump to listen to the consensus of scientists and 195 parties to the Paris Agreement, this was it, and he failed.
When George …
A sign of the times: Fox News has reported, without comment, that the Kentucky Coal Museum is installing solar panels to save money. This is part of a larger trend.
On Saturday, the New York Times reported on shifts in power production in states like West Virginia and Kentucky. For instance, Appalachian Power has “closed three coal-fired plants and converted two others to gas, reducing its dependence on coal to 61 percent last year, down from 74 percent in 2012.” In response to an inquiry from the Governor, the company said it has no plans to build another coal plant. In Kentucky, the Public Utility Commission has advised companies about offering renewable energy packages in order to attract large corporations, many of whom have strong green energy programs.
Similarly, in Wyoming, Microsoft made a deal to get wind power for its new data center. In fact, according …
President Trump’s FY 2018 budget request may be DOA in Congress, but it nonetheless offers critical insight into how he expects to pay for his border wall, increase defense spending, offer up a trillion-dollar infrastructure plan, and carry out his other pet projects, all while cutting corporate taxes. The bottom line is that he intends to eliminate some public programs and rob many others, and give that money to private corporations. The Trump budget proposal to slash funding for the Occupational Safety and Health Administration (OSHA) compared to the FY 2016 appropriations is a perfect example, although he’s proposed similarly drastic cuts, unfortunately, to many other non-defense programs in the budget.
While OSHA would suffer less drastic cuts than some other agencies, the targeted precision of these cuts—focused squarely on programs with such direct positive effects for workers—disproves Trump’s claim to be …
Yesterday, ten distinguished law professors, all of them CPR Member Scholars writing in their individual capacities, filed an amicus brief in support of a lawsuit brought by Public Citizen, the Natural Resources Defense Council (NRDC), and the Communication Workers of America challenging as illegal and unconstitutional the Trump administration’s Executive Order 13771. The order requires agencies to identify at least two existing rules to repeal for every new one they seek to issue and to ensure that the money companies would save by not having to comply with the two health, safety, environmental, or other regulations would fully offset the compliance costs associated with the new rule.
The goal of the amicus brief is to further elucidate the “fundamental principles of administrative law and policy” that undergird the legal arguments raised in the lawsuit. To do this, it traces in painstaking detail the history of U …
President Trump ordered EPA and the Army Corps to review the Obama Administration’s Waters of the United States (WOTUS) rule, which sets expansive bounds on federal jurisdiction over water bodies and wetlands. The agencies have sent the White House a proposal to rescind the WOTUS rule and revert to earlier rules until they can come up with a replacement. In my view, either the agencies will have to dive deep into the scientific thicket in the hope of justifying a new rule, or they will have to gamble that Trump will get another Supreme Court appointment before their action gets to the Court.
The Current State of Play
To set the stage, WOTUS (short for “Waters of the United States”) is a response to the Rapanos decision, in which Justice Scalia and three others judges argued for a very narrow definition of federal jurisdiction over streams …
From the safety of Air Force One en route from Tel Aviv to Rome, President Trump dropped his FY 2018 budget on Washington, D.C., and sent OMB Director Mick Mulvaney to run point on the ground. They like to talk about it as a "hard power" budget. What they don't like to talk about are the consequences of unleashing such firepower on the American public.
Make no mistake about it, this budget is the realization of several decades' travail by small-government conservatives. As Grover Norquist, head of Americans for Tax Reform, famously put it, they want to shrink the federal government to the size that they can drown it in a bathtub. So when you hear President Trump and his surrogates pivot from "hard power" to expressing their heartfelt concerns for taxpayers first, think about where that idea comes from. Their messaging is rooted not …
Originally published on The Regulatory Review by CPR Member Scholar William Funk.
Professor Kent Barnett recently opined in The Regulatory Review that formal rulemaking really is not that bad and may actually be a good thing in certain circumstances. His argument deserves closer review because the proposed Regulatory Accountability Act (RAA) would require the equivalent of formal rulemaking—or what the bill calls a "public hearing." Barnett may well be right to suggest that in some situations the costs of formal rulemaking could be justified, but he could not be more wrong to argue that the circumstances that would trigger formal rulemaking under the RAA are among those situations.
As Barnett acknowledges, the U.S. Supreme Court, scholars, policy makers, and other interested parties all have condemned formal rulemaking. Why? Because formal rulemaking utilizes a judicial, trial-like procedure to adopt rules that are legislative, not adjudicative, in …
Today, 27 Member Scholars of the Center for Progressive Reform, leading academics who specialize in administrative law and regulatory policy, submitted a letter to Senate Homeland Security and Governmental Affairs Committee Chairman Ron Johnson and Ranking Member Claire McCaskill outlining their serious concerns with the Senate Regulatory Accountability Act. That bill is among several aimed at undermining our system of regulatory safeguards that are set to be marked up by the committee at its business meeting on Wednesday. Others set to be marked up include the Senate REINS Act and the Senate Small Business Regulatory Flexibility Improvement Act.
In the letter, CPR Member Scholars identified seven troubling aspects of the bill:
- A requirement for a trial-like, adversarial hearing for many "major" rules and all "high-impact" rules that will likely lead to inefficient and undemocratic rulemaking;
- A vague and misplaced requirement that agencies choose the most "cost-effective" regulatory …
CPR Member Scholars continue to make their voices heard on the nation’s opinion pages. You can always review the latest and greatest pieces on our op-eds page, but here’s a roundup from the last few weeks to save you a couple clicks.
Two CPR Member Scholars had pieces in The American Prospect in mid-April. Tom McGarity called out the right wing’s on-again, off-again allegiance to states’ rights in "Trumping State Regulators and Juries." McGarity writes, “Conversations about how progressive states should resist regressive Trump administration policies and sidestep Republican control of Congress often ignore the elephant in the room—the power of the federal government to preempt state regulations and even the ability of victims of corporate abuse to seek relief in state courts.” The right wing has been supportive of regulatory preemption for some time now, its decades’ long use of states’ rights …
